The Queen V. The jawathie Gunawardene

[TRIAL AT BAR]

1954 Present: Rose C. J., Gunasekara J.- and Pulle J.

THE QUEEN v. THEJAWATHIE GUNAWARDENE

Information No. 1 of 1954 exhibited in the Supreme Court by the Attorney-General

Informations-Power of Attorney-General to exhibit informations-Circumstances when informations may be presented-Criminal Procedure Code, s. 385.

Trial at Bar-Direction of Minister of Justice-Jurisdiction of Court to adjudicate upon its validity-" Disturbance of public feeling "-Test of its existence'- How far justiciable-Criminal Procedure Code-, s. 440A (2) and (2).

Information was exhibited by the Attorney-General against the defendant on August 5, 1954, charging her with criminal defamation in respect of a defamatory statement published on July 1, 1954, in a newspaper called " Trine ", concerning a person who had held high office in Government for many years in various capacities and who, on the day previous to the date of publication of the statement, had ceased to hold office as Minister of Finance and was Governor-General designate. The alleged libel was to the effect that the Governor-General designate had been engaged in swindles on an international scale and that a public trial of the gang-of which presumably he was a member -was imperative.

On August 6, 1954, the Chief Justice received from the Minister of Justice a written communication dated the previous day and purporting to be a direction under Section 440A of the Criminal Procedure Code that the defendant should be tried at Bar by three Judges without a Jury.

Before defendant pleaded to the information her Counsel moved that the information be quashed on the ground that it was one which the Attorney-General could not validly exhibit, and also contended that the direction of the Minister of Justice was invalid.

Held, that if the Attorney-General in whom rested the discretion either to proceed by indictment or information took the view that the imputations which were the subject of the information tended to disturb or endanger the Government, it was impossible to hold, assuming that the Court had the power to review that discretion, that that view was wrong. The speedy process of information was designed not to vindicate the personal honour of the officer libelled but to counteract what was essentially a public mischief. In the circumstances the Attorney-General had the power under Section 385 of the Criminal Procedure Code to file the information, and the application to quash it must accordingly fail.

Quaere, whether in any event the Court had the power to quash an ex officio information ?

Held further, (i) that the Court had jurisdiction to adjudicate upon the question whether the direction given by the Minister of Justice was a valid direction in the sense that it complied with the requirements of Section 440A Of the Criminal procedure Code. The circumstance that the Minister had purported to direct that the information " shall be tried before the Supreme Court at Bar by three Judges without a Jury " did not have the effect that a Bench of three Judges which assembled to hear the information ceased to be the Supreme Court and became a different tribunal created by the Minister.

(ii) that there was no requirement to give the Minister of Justice an opportunity of being heard in support of the direction given by him.

(iii) (by the majority of the Court) that in a case of disturbance of public feeling, before the Minister of Justice proceeds under Section 440A (1) (6) to the consideration of the question as to whether the matter is appropriately triable by three Judges without a Jury there must be reasonable grounds for his belief that there is a disturbance of public feeling. The sole test to be applied in such a case is whether, in the opinion of the Court, a reasonable man occupying the seat of the Minister could reasonably come to the conclusion that there existed a disturbanc

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